FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CORK COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-047229-Ir-06/POB.
BACKGROUND:
2. Cork County Council has a workforce of approximately 3,000 which includes 220 Retained Fire Service personnel of which the Claimant was a member for 23 years until his retirement at the age of 47 years in 1996. On reaching 55 years of age the Claimant sought a retirement gratuity from the Council which was rejected on the grounds that he retired for personal and business purposes rather than for medical reasons.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 9th July, 2007, the Rights Commissioner issued his recommendation as follows;
"While all parties have a degree of sympathy towards the claimant the potential knock-on costs of a favourable decision in this case, while not determined exactly, are high. A decision on a red circle basis has been considered by the Respondent and ruled out for this reason, and I believe this reason alone.
I regret therefore that I have to find the claimant's case not well founded"
On the 23rd July, 2007 the Claimant appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 24th October, 2007.
UNION'S ARGUMENTS:
3. 1. No document can be found that says you lose your retained gratuity for service completed if you retire prior to age 55.
2. The Claimant understood he was given a firm commitment in regard to his retained gratuity after 23 years of service to his community.
COMPANY'S ARGUMENTS:
4. 1. Following the implementation of the National Pay Rates to Part-time Firefighters and the National Scheme of Gratuities it was made clear that only on reaching age 55 or earlier if forced to retire on grounds of ill-health would a Firefighter retain his preserved gratuity.
2. If the custom and practice was reversed it could have potentially major cost implications for the Council and at a National level.
DECISION:
This claim is for the payment of a gratuity to one worker in consequent on his resignation from the retained fire service in 1996 after 23 years service.
The scheme for the payment of gratuities to retained fire fighters on retirement is governed by an agreement made between LGMSB, SIPTU and the former ATGWU. It provides that on retirement at age 55, or earlier if retirement is on grounds of ill health, a retained fire fighter becomes eligible to a gratuity calculated by reference to his or her length of service. The Claimant in this case resigned before reaching the age of 55 for private or business reasons. The Union contends that on reaching the age of 55 he should have received the gratuity based on his service up to the date of his resignation. The Council say that the agreement governing the payment of gratuities precludes the Claimant from entitlement because he resigned before reaching age 55 for a reason other than ill health.
The Court has examined the various documents submitted by the parties in relation to the agreement in question. It is noted that the agreement was amended in April 2006 so as to provide for the payment of a preserved gratuity, on reaching age 55, to those who leave the retained service before reaching that age. However, that agreement is only operative from 1st January 2005.
Having carefully considered all of the submissions made by the parties the Court is satisfied that the preponderance of evidence points to the conclusion that at the time the Claimant resigned from the service he was not entitled to a preserved gratuity under the relevant agreement as it then stood. While the agreement was subsequently amended that amendment does not avail the Claimant since it only took effect some nine years after his resignation.
The Court must uphold the terms of the collective agreement and must conclude that the Rights Commissioner was correct to reject the Union's claim. Accordingly, the Court must disallow this appeal and affirm the Recommendation of the Rights Commissioner.
Rider.
While the Decision of the Court is to disallow the appeal it wishes to add a rider to that Decision. It appears to the Court that the situation in which the Claimant finds himself is somewhat inequitable. The payment of a gratuity is akin to a superannuation benefit which accrues as part of the remuneration package attaching to the job of a retained fire fighter. There seems to be no good reason as to why the entitlement to this gratuity should not be preserved, in the case of a person who resigns before retirement age, in the same way as other superannuation benefits are preserved. That has now been recognised by the parties to the agreement who have provided for the preservation of this benefit for those who leave the service early in future. The Court accepts that Council is bound to apply the agreement as it finds it. However, the situation as it affects the Claimant appears to be anomalous and should be considered by the parties to the agreement at an appropriate level.
Signed on behalf of the Labour Court
Kevin Duffy
22nd November, 2007______________________
JF.Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.